Supreme Court Ruling on Cell Phone Privacy: Encouraging for Privacy

At the end of its 2013-14 session, the Supreme Court stood up for privacy in a case involving cell phones. In Riley v. California, http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf, the Court held that the police cannot search a cell phone’s contents incident to an arrest without a search warrant. As a result of this ruling, when the police arrest someone, perhaps for a traffic violation, a misdemeanor, or even a serious crime, all information in a cell phone should not be automatically accessible to the police without any further review. Police must obtain a search warrant.

Not only was the result terrific, but the decision was unanimous. For those interested in the entrails of the Fourth Amendment, there is much to consider in Chief Justice Roberts’ opinion. For our purposes, we found the Court’s take on cell phones to be most encouraging. The Court recognized the central role that cell phones play in our lives and the vast range of information that the phones maintain. Here’s a key quote from the case:

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity tube used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

Looking through the contents of a cell phone is like examining many of the intimate details of our personal lives. The Court understood the technology and adjusted its view of the Fourth Amendment accordingly to fit. That is a positive development.

There is always a lot to chew on in any Supreme Court decision. What strikes us as most important is what the decision implies for the future. Most of us will not be arrested, but we will continue to live our lives using heavy doses of technology. Will the Supreme Court recognize how technology has changed other fundamental aspects of our lives and adjust the law in the same way?

On this issue, we found some interesting blogs by others. Susan Freiwald, Professor of Law, University of San Francisco School of Law, offered two insightful observations. She wrote:

Both observations are encouraging. The Court is not automatically accepting what the government tells it about technology, and the Court sees that precedent must adjust to technology.

But another comment, this one by Margot Kaminski, Assistant Professor of Law at The Ohio State University Moritz College of Law, was not nearly as positive about the decision’s possible long-term impacts. Kaminski observed that the same day the Court decided Riley, it also decided the Aereo case, a case involving a service that allows subscribers to watch television programs over the Internet at about the same time as the programs are broadcast over the air. http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf.

Aereo is a copyright case, not a prime concern here at the World Privacy Forum. What Kaminski observed is that unlike Riley, the Court did not embrace the new technology that Aereo employed, instead analogizing its service to cable TV, and as Kaminski put it, the Court “resolutely refused to address how its holding applies to other [paradigm-shifting] technologies.”

Maybe Riley was just a cell phone case, and it says little or nothing about the Court’s view of other modern technologies. Maybe Aereo was just a battle between companies over the marketplace share, and the Court stayed on the side of the traditional players. As seems to be the case more often than not, it will take more litigation to tell.

There may be another way out. Justice Samuel Alito filed a concurring opinion in Riley in which he noted the need for clearer rules regarding searches incident to arrest. He observed that it would take many cases and many years for the courts to develop more nuanced rules with respect to electronic devices. He called on Congress and state legislatures to step up to the plate and respond to the technological changes by enacting new laws.

Alito’s request for legislation seemed limited to cell phone searches incident to arrest. We’d like to see legislatures go much further and revise existing laws that are technologically out of date. Our list includes the Fair Credit Reporting Act, the Privacy Act of 1974, and the Electronic Communications Privacy Act. To say that we are not hopeful is a distinct understatement.

Meanwhile, we are happy enough about Riley, no matter what its longer term implications may be.

To score is human. Ranking individuals by grades and other performance numbers is as old as human society. Consumer scores — numbers given to individuals to describe or predict their characteristics, habits, or predilections — are a modern day numeric shorthand that ranks, separates, sifts, and otherwise categorizes individuals and also predicts their potential future actions. This new report by Pam Dixon and Robert Gellman explores this issue of predictive scores and privacy.

This Jan. 30, 2014 report discusses a new right to restrict disclosure of health information under the updated HIPAA health privacy rule. The new provision called “Pay Out of Pocket,” also called the “Right to Restrict Disclosure” gives patients the right to request that their health care provider not report or disclose their information to their health plans when they pay for medical services in full. Navigating the new right will take effort and planning for patients to utilize effectively. This substance of this report is about the new patient right to restrict disclosure, and how patients can use it to protect health privacy.

This report focuses on government use of commercial data brokers, the implications for that usage, and what needs to be done to address privacy problems. The government must bring itself fully to heel in the area of privacy. If it is going to outsource its data needs to commercial data brokers, it needs to attach the privacy standards it would have been held to if it had collected the data itself. Outsourcing is not an excuse for evading privacy obligations. Report authors: Bob Gellman and Pam Dixon.